(Nov. 24, 2008) On October 16, 2008, Peru's President Alan Garcia Perez promulgated Law No. 29269, amending articles 81 and 84 of the Code of the Child and the Adolescent to incorporate a provision dealing with joint custody. The new version of article 81 states that when the parents are “de facto” (actually) separated, the custody of the children or adolescents is determined by common agreement between the parents, taking into account the opinion of the child or adolescent. If there is no agreement or if the agreement is harmful to the children, custody will be decided by a special judge, who will issue the necessary measures for implementation of his decision. The judge may order joint custody, protecting at all times the interests of the child or adolescent.
Article 84 deals with the authority of the judge. If there is no agreement on custody in any of its forms, the judge will take into account the following conditions in making his decision: (1) the child or adolescent will remain with the parent with whom the child or adolescent has lived for the longer period of time, provided that this is beneficial to the child; (2) a child under three years old will remain with the mother; and (3) the parent who did not obtain custody will be granted visitation rights. In any of these circumstances, the judge will grant custody to the parent who can best guarantee the right of the child or adolescent to maintain contact with the other parent. (Ley No. 29269, EL PERUANO [official gazette] (Oct. 17, 2008), available at http://www.congreso.gob.pe/ntley/Imagenes/Leyes/29269.pdf.)